Toelichting bij COM(2024)60 - Bestrijding van seksueel misbruik en seksuele uitbuiting van kinderen en van materiaal van seksueel misbruik van kinderen, en ter vervanging van Kaderbesluit 2004/68/JBZ (herschikking) - Hoofdinhoud
Dit is een beperkte versie
U kijkt naar een beperkte versie van dit dossier in de EU Monitor.
| dossier | COM(2024)60 - Bestrijding van seksueel misbruik en seksuele uitbuiting van kinderen en van materiaal van seksueel misbruik van kinderen, en ... |
|---|---|
| bron | COM(2024)60  |
| datum | 06-02-2024 |
•Reasons for and objectives of the proposal
In July 2020, the Commission presented an EU Strategy for a more effective fight against child sexual abuse (hereinafter ‘the Strategy’). This Strategy set out eight initiatives aiming to ensure full implementation and, where needed, further development of the legal framework to combat child sexual abuse and exploitation. At the same time, it sought to strengthen the law enforcement response and to catalyse multistakeholder efforts in relation to prevention and investigation, and for assistance to victims and survivors.
In particular, the Strategy recognised the need to assess whether the current EU criminal law framework, namely Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography (hereinafter ‘the Directive’), is fit for purpose considering the societal and technological changes over the past decade. The Directive was adopted to establish minimum standards to prevent and fight these particularly serious forms of crime, which are directed against children, namely victims that have a right to special protection and care. It established minimum rules on the definition of criminal offences and sanctions in the area of sexual exploitation of children, as well as minimum standards on effective investigation and prosecution, assistance and support to victims, and prevention of child sexual abuse and exploitation.
In 2022, the Commission conducted an evaluation to assess the implementation of the Directive, assessing possible legislative gaps, best practices and priority actions at EU level. The study showed that the text presents opportunities for improvement: it highlighted the ambiguity of certain definitions set out in the Directive, and challenges concerning investigations and prosecution of offenders. The study raised concerns related to the exponential growth of online sharing of child sexual abuse material and to the increased possibilities for perpetrators to hide their identity (and conceal their illegal activities), most notably online, thereby escaping investigation and prosecution. In conclusion, the study found that both the increased online presence of children and the latest technological developments raise challenges for law enforcement while creating new possibilities for abuse that are not entirely covered by the current Directive.
The study also concluded that the various legal frameworks in place in Member States concerning investigation and prosecution do not provide for an effective fight against child sexual abuse and exploitation throughout the EU, notably due to insufficient criminalisation of child sexual abuse and exploitation offences committed through the use of new and emerging technologies. Finally, it highlighted that Member State efforts to prevent child sexual abuse and to assist victims are still limited, lack coordination and are of unclear effectiveness. To address shortcomings in implementation, the Commission followed up through enforcement measures, launching infringement procedures as necessary. At the same time, the evaluation showed clearly that a renewed legislative framework is needed at EU level.
Against this background, a targeted revision of the Directive is necessary:
·to ensure that all forms of child sexual abuse and exploitation, including those enabled or facilitated by technological developments, are criminalised;
·to ensure that national rules on investigation and prosecution provide for an effective fight against child sexual abuse and exploitation by taking into account recent technological developments;
·to improve both prevention and assistance to victims; and
·to promote better coordination in preventing and combatting child sexual abuse across Member States and, at national level, among all parties involved.
•Consistency with existing policy provisions in the policy area
This proposal further develops the existing provisions of the Directive and is presented in the framework of the 2020 EU Strategy for a more effective fight against child sexual abuse.
The proposal complements other EU initiatives that, directly or indirectly, address aspects of the challenges linked to child sexual abuse and exploitation offences. These initiatives include:
–Directive 2012/29/EU on establishing minimum standards on the rights, support and protection of victims of crime;
–Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims;
–Regulation (EU) 2021/1232 on a temporary derogation from certain provisions of Directive 2002/58/EC as regards the use of technologies by providers of number-independent interpersonal communications services for the processing of personal and other data for the purpose of combating online child sexual abuse, and the recently adopted proposal for a limited extension in time of the temporary derogation 1 ; and
–the Proposal for a Regulation laying down rules to prevent and combat child sexual abuse.
The latter would put in place obligations on online service providers to take responsibility for protecting children who use their services from online child sexual abuse. The proposed Regulation relies on the Directive for the definition of what is a criminal offence because it constitutes child sexual abuse material and solicitation. The Directive constitutes the criminal law pillar upon which the proposed Regulation stands.
The two instruments would reinforce each other to jointly provide a more comprehensive response to the crime of child sexual abuse and exploitation, both offline and online. In particular, the EU Centre to prevent and combat child sexual abuse, envisaged in the proposed Regulation, would also play an important role in supporting Member State actions on both prevention and assistance to victims under this proposal. While the EU Centre would support law enforcement and the judiciary in providing reports of higher quality, it leaves unaffected the current distribution of responsibilities among Europol, Eurojust, and national law enforcement and judiciary authorities.
•Consistency with other Union policies
This proposal is consistent with related Union policy, in particular the following:
–It complements the EU legal framework regulating digital services, most notably the recently adopted Digital Services Act 2 . The latter addresses the responsibility of online service providers in relation to illegal content circulating on their services. This proposal ensures that the definition of a specific type of illegal content, namely online child sexual abuse, is updated and suitable to ensure effective action in today’s and tomorrow’s digital world, while also insisting on awareness raising and education. By doing so, the proposal is also fully complementary with the EU strategy for a Better Internet for Kids (BIK+).
–It is consistent with, and complementary to, the proposal for a Directive on combating violence against women and domestic violence. That proposal aims at establishing minimum standards in relation to: the definition of offences and sanctions for violence against women and domestic violence throughout the EU; the protection of victims of these crimes and access to justice; victim support and prevention; and coordination and cooperation between all relevant stakeholders.
–It is consistent with the proposal for the revision of the Victims’ Rights Directive which provides for targeted amendments aiming to ensure that victims can fully rely on their rights in the EU.
–It is consistent, especially in its awareness-raising and education components, with the 2019-2027 EU Youth Strategy, which recognises that young people in the EU face specific challenges and that their empowerment, including through education, is crucial in helping them to face such challenges successfully.
–It is consistent also with the comprehensive EU Strategy on the Rights of the Child, the adoption of which in 2021 created an overarching EU policy framework for children’s rights and child protection. The Commission plans to complement this by a Commission recommendation on integrated child protection systems.
–It is also consistent with the European Child Guarantee, which aims at preventing and combatting social exclusion by guaranteeing effective access of children in need (including those hailing from precarious, violent and abusive family backgrounds) to a set of key services, such as education, healthcare and housing.
–It is consistent with the “do no significant harm” principle on not supporting or carrying out economic activities that do significant harm to any environmental objective, where relevant, within the meaning of Article 17 of Regulation (EU) 2020/852 3 , as the Directive has no negative impact on these objectives. It is also consistent with the climate-neutrality objective set out in the European Climate Law 4 .
Inhoudsopgave
•Legal basis
This proposal recasts Directive 2011/93/EU. It is therefore based on Articles 82(2) and 83 i of the Treaty on the Functioning of the European Union, which are the legal bases of Directive 2011/93/EU. The two legal bases allow the European Parliament and the Council to establish, by means of directives, minimum rules necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, and minimum rules on the definition of criminal offences and sanctions in the area of sexual exploitation of children, respectively.
·Variable geometry
As regards variable geometry, this proposal follows a similar approach as the current Directive.
In accordance with Article 3 of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland may notify its wish to take part in the adoption and application of the Directive.
In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this proposal and is not bound by it or subject to its application.
·Subsidiarity (for non-exclusive competence)
The cross-border nature of child sexual abuse and exploitation offences, which justified the adoption of the Directive, has become even more prominent in the last decade, with increased prevalence in the use of online technologies that enable, facilitate and amplify the impact of such offences. To provide for both effective prosecution of offenders and victim protection everywhere in the EU, this proposal sets out to establish common minimum standards on the definition of offences and levels of sanctions, an objective that Member States would not be able to reach individually and that can only be achieved by action at EU level. Moreover, given the online dimension of these crimes, which has become increasingly prominent, Member States would not, in the absence of common rules, be able effectively to: (i) prevent the commission of child sexual abuse offences in their territory; (ii) investigate and prosecute child sexual abuse crimes with a cross-border dimension; and (iii) identify victims and provide appropriate assistance to them. Hence, the proposal fully respects the principle of subsidiarity as set out in Article 5 i of the Treaty on European Union.
•Proportionality
The changes to the Directive under this proposal are limited and targeted, aimed at effectively addressing the key shortcomings identified in the implementation and evaluation of that Directive. According to the impact assessment, the proposed changes are limited to those aspects that Member States cannot achieve satisfactorily on their own. In particular, the definitions of offences need to be adapted at EU level to achieve the objective of tackling cross-border child sexual abuse and exploitation. As to the amendments in relation to prevention, assistance to victims, investigations and prosecutions, those respond to specific gaps and challenges that have emerged during the monitoring of the implementation of Directive 2011/93 over the past decade. Any further administrative burden that might arise from this update is considered proportionate in view of the long-term benefits, including cost benefits, that are linked to prevention and early detection of these types of offences for victims and society at large. In addition, the supportive role of the EU Centre in the fields of prevention and assistance to victims would keep any such administrative burden to a minimum. In light of the above, the proposal does not go beyond what is necessary to achieve the stated objectives.
•Choice of the instrument
This proposal is intended to provide for targeted changes to the Child Sexual Abuse Directive, which are intended to address the gaps, inconsistencies and shortcomings identified from the implementation and evaluation of the Directive. Since this proposal is to recast the Child Sexual Abuse Directive, the same legal instrument is the most appropriate.
•Ex post evaluations/fitness checks of existing legislation
In the course of 2022, in line with what had been announced in the 2020 Strategy, the Commission conducted an evaluation study to assess implementation of the Child Sexual Abuse Directive, identifying legislative gaps, best practices and priority actions at EU level. The evaluation study 5 concluded that the Directive was not entirely capable of tackling the challenges arising from the significant societal and technological changes that have occurred in the past decades. It notably raised concerns in relation to the exponential growth of online sharing, increased possibilities for perpetrators to hide their identity (and conceal their illegal activities), and facilitation in conspiring between perpetrators to avoid accountability and to commit further crimes. The evaluation study also highlighted ambiguities in certain of the Directive’s provisions and pointed to persistent challenges concerning investigations and prosecution of offenders. Moreover, it noticed that the very broad leeway left for national differentiation in the area of prevention and assistance to victims had led to implementation difficulties and unsatisfactory results in many Member States. It concluded that even full and conforming transposition of the Directive in its current form would neither serve to sufficiently address the challenges linked to the reporting, investigation and prosecution of child sexual abuse and exploitation offences nor lead to the adoption throughout the EU of sufficiently sound measures in relation to prevention and assistance to victims.
•Stakeholder consultations
A wide consultation was conducted in the context of the back-to-back evaluation of the Child Sexual Abuse Directive and impact assessment of potential initiatives to fill the gaps identified in such an evaluation. This included publication of the combined evaluation roadmap/inception impact assessment on the Commission’s ‘Have your say’ portal from 28 September to 26 October 2021, which saw reactions from 17 stakeholders. Targeted consultations, asking more technical questions on the revision of the Directive, took place in the first half of 2022 and were carried out both by the Commission independently and in the context of a study commissioned to an external contractor. Key stakeholders consulted included:
–Member State national authorities involved in the implementation of the Directive and in its transposition (e.g. law enforcement agencies; prison, detention and parole services; administrative, child protection and judicial authorities), and regional and local authorities;
–relevant EU agencies (including Europol, Eurojust and the Fundamental Rights Agency (FRA));
–relevant organisations in non-EU countries, including the US National Centre for Missing and Exploited Children (NCMEC), and the Canadian Centre for Child Protection (C3P);
–relevant international organisations, including the Council of Europe;
–relevant industry stakeholders;
–hotlines, including the EU-funded INHOPE network, and other civil society organisations focused on child protection, child rights, prevention, and privacy; and
–researchers and academics that work on child sexual abuse and exploitation.
The Commission also carried out an open public consultation targeting the general public with the aim of collecting information, evidence, and views on the issues at stake and to feed into the evaluation and impact assessment process. In the context of the study, a questionnaire in all EU official languages on the evaluation of the Child Sexual Abuse Directive was made available, and a preliminary discussion on the objectives of a policy initiative to review it was carried out via the Commission’s EU Survey tool between 20 April 2022 and 13 July 2022. Overall, 49 responses were received from stakeholders in 23 countries, including 18 Member States (AT, BE, CZ, DE, DK, EE, EL, ES, FI, FR, HR, HU, IT, MT, NL, PT, SE and SI). In this context, the Commission also received, in addition to the replies, 21 written contributions, including 11 contributions from civil society organisations, three from representatives of business organisations, four from ICT companies, one from a representative of a national ministry of justice, one from a legal expert and one from an EU citizen.
The consultation process showed, in general, that children are affected by the shortcomings of the current Directive in relation to emerging trends enabled or facilitated by technological development and the increased online presence of children and predators. It confirmed that these new trends come with new investigative challenges that need addressing. It also pointed to the need to better account for the specificities of child sexual abuse and exploitation offences, including the challenges encountered by victims in reporting, the need for targeted prevention and victim assistance, and to address the difficulties caused by phenomena such as that of travelling sex offenders.
All the main problems identified in the consultations have been taken into account and addressed in the proposal.
• Collection and use of expertise
The evaluation and impact assessment were supported by a study carried out by an external contractor. Furthermore, the Commission organised six expert workshops, from 17 January 2018 to 6 September 2019, to gather information on challenges and emerging issues in the field of child sexual abuse and exploitation, and to discuss the main difficulties encountered in the Directive’s implementation, as well as its relevance in light of new and expected trends and developments. As explained in detail in Annex 2 to the impact assessment accompanying the proposal for a Directive (Recast), additional external expertise was gathered through the following stakeholder consultation methods: scoping interviews, desk research, online survey, public consultation, targeted interviews, case study interviews, and workshops.
•Impact assessment
The impact assessment carried out for the preparation of the proposal evaluated three policy options, presenting a range of increasingly ambitious policy measures intended to respond to three problem drivers:
–both the increased online presence of children and the latest technological developments raise challenges for law enforcement while creating new opportunities for abuse;
–the different legal frameworks in place in Member States concerning investigation and prosecution, which do not provide for an effective fight against child sexual abuse and exploitation; and
–the shortcomings of Member State efforts to prevent child sexual abuse and to assist victims, namely their limited nature, their unclear effectiveness, and the lack of coordination among relevant stakeholders.
The three policy options examined were as follows:
–Option A: Targeted legislative adjustments to clarify ambiguities of the current framework, ensure coherence with new instruments, and improve the quantity and quality of available information.
–Option B: Option A plus legislative amendments modifying definitions of crimes to take into account current and expected technological developments.
–Option C: Option B plus legislative amendments to ensure more effective prevention, assistance to victims, and investigation and prosecution, taking into account the cross-border dimension of the phenomenon.
Based on the assessment of the social and economic impacts, as well as effectiveness and efficiency, the preferred policy option is option C. The preferred option contains a larger set of policy measures from prevention to prosecution and assistance to victims, which would address both the original ambiguities and shortcomings identified in the Directive and the need to update it to keep up with new and emerging trends while ensuring more efficient cross-border cooperation. Option C further streamlines national rules on investigation and prosecution to ensure, among other things, the full mobilisation of existing tools to prevent sex offenders from committing crimes abroad and the availability of effective investigative methods in all Member States. Finally, it better specifies prevention and obligations for assistance to victims, and improves coordination among Member States, including through the work of a network of national authorities and reliance on the EU Centre to prevent and combat child sexual abuse.
The possible increase in the number of prosecutions and investigations concerning child sexual abuse that might derive from more effective investigative tools and better coordination within and among Member States might entail administrative costs for Member States. However, it should also bring significant benefits in terms of limiting the costs to society of child sexual abuse. In particular, the initiative is expected to significantly reduce costs associated with child sexual abuse, producing savings relating to: (i) offenders and victims (e.g. by preventing the offence from being committed and saving the costs linked to criminal proceedings, as well as short and long-term assistance to victims); and (ii) society at large (e.g. by avoiding the productivity losses linked to child sexual abuse and the related trauma).
The initiative will have a positive impact on the fundamental rights of children, including their right to physical and mental health and their right to protection and care as is necessary for their well-being. The initiative will also have a positive impact on the rights of adult survivors of child sexual abuse, by improving compensation, assistance and support to victims.
On 13 December 2022, the impact assessment was submitted to the Regulatory Scrutiny Board, which held a meeting on 18 January 2023. The Board issued a positive opinion with reservations on 20 January 2023. The Board pointed to a number of aspects of the impact assessment that should be addressed. Specifically, the Board requested further clarification on the dynamic baseline described as a starting point to assess the various options and, in particular, on the role played in this baseline by the proposed Regulation laying down rules to prevent and combat child sexual abuse. It requested that more details be provided on the analytical method and assumptions underpinning the cost-benefit analysis, and on the role of national authorities for child sexual abuse under the proposal. Finally, it asked the Commission to include in the final version a more detailed explanation of the underlying trade-offs that frame the context for the policy options and a more systematic account of the views of the various categories of stakeholders.
These and other more detailed comments provided by the Board have been addressed in the final version of the impact assessment. In particular, it describes in a clearer manner the interplay with the proposed Regulation laying down rules to prevent and combat child sexual abuse, gives a better account of the methodology used to assess cost and benefits, and expands on the policy options and stakeholder views. The Board’s comments have also been taken into account in the proposed recast Directive.
•Regulatory fitness and simplification
In compliance with the Commission’s Regulatory Fitness and Performance Programme (REFIT), all initiatives aimed at revising existing EU legislation should seek to simplify and reduce administrative burden on Member States. The impact assessment concludes that the preferred option would indeed have an administrative burden but that this would be offset by the positive impact of the measures on the prevention of and fight against child abuse, and protection of the victims of this crime.
The targeted amendments to the Directive are aimed at improving Member State capacity to fight the crime efficiently, in relation to threats and trends that have emerged and evolved in recent years and with new technological developments. New rules applicable to Member States are expected to improve cross-border cooperation, both in terms of investigations and prosecutions, and for victim assistance and support.
The initiative improves the clarity of the legal landscape for fighting child sexual abuse across Member States. The regulatory burden related to the proposal is of limited scope, as it mostly consists in improvements to existing norms rather than in entirely new obligations. Member States already investigate, prosecute and punish offences related to child sexual abuse as they stand. The proposal merely introduces a limited number of definitions and stand-alone offences related to child sexual abuse, which will have a very significant impact on countering the crime; indeed some, but not all, Member States have already adopted them. Most of the regulatory and administrative burden on Member States would stem from coordination obligations, the identification of clear benchmarks, and data collection modifications. However, even in this respect, Member States already collect data on child abuse, and the proposal is intended to ensure more consistency and transparency in existing processes, and better reporting.
No impact is expected on SMEs and competitiveness. All the policy options under consideration would result in costs for public authorities in Member States, rather than costs for EU citizens and business.
•Fundamental rights
This initiative is consistent with the EU Charter of Fundamental Rights of the European Union. It contributes also to strengthening specific fundamental rights, in particular: the right to human dignity (Article 1); the right to the integrity of the person (Article 3); the prohibition of inhuman or degrading treatment or punishment (Article 4); and the rights of the child (Article 24).
There is no implication for the European Union budget.
•Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will check the correct and effective transposition of the recast Directive into the national laws of all participating Member States. Throughout the implementation phase, the Commission will organise regular contact committee meetings with all Member States. Periodically, the Commission will present to the European Parliament and the Council a report evaluating the implementation, functioning and impact of the recast Directive.
In order to monitor and evaluate the phenomenon of sexual abuse and sexual exploitation of children, it is necessary for Member States to have mechanisms for data collection or focal points in place. For these reasons, Article 31 is included, which obliges Member States to have a system in place for the collection, development, production and dissemination of statistics on offences referred to in Articles 3 to 9. Every 3 years, Member States are required to conduct a population-based survey using the harmonised methodology of the Commission (Eurostat) to gather data on the number of victims of offences under the Directive. On this basis, they must assess the prevalence of and trends for all offences covered by this Directive. Member States are to transmit the data to the Commission (Eurostat). In order to ensure administrative data comparability across the EU, Member States are required to collect administrative data on the basis of common disaggregations developed in cooperation with the EU Centre and are to transmit these data to the EU Centre on a yearly basis. The EU Centre would support Member States in the data gathering for offences under Articles 3 to 9, including by establishing common standards on counting units, counting rules, common disaggregations, reporting formats, and on the classification of criminal offences. The statistics gathered by Member States are to be transmitted to the EU Centre and the Commission, and the collected statistics are to be made available to the public on an annual basis. Lastly, Member States are required to support research on root causes, effects, incidences, effective prevention measures, effective victim assistance measures, and conviction rates for the forms of offences covered by the proposal.
•Explanatory documents (for directives)
Given that the proposal contains a larger number of legal obligations compared with the existing Directive, it will be necessary that explanatory documents, including a correlation table between national provisions and the Directive, accompany the notification of transposition measures. This is to ensure that the transposition measures that Member States have added to existing legislation are clearly identifiable.
The measures adopted to transpose this proposal are unlikely to be limited to one single legal text. For this reason, it is necessary that Member States provide an explanatory document communicating to the Commission the text of the provisions adopted in transposing this Directive. It should also show how such provisions interact with the provisions that had already been adopted to transpose Directive 2011/93/EU and with provisions covered by other relevant EU policies.
The Commission is preparing guidelines for implementing the prevention and victim assistance obligations and these will be made available to Member States in due time. To support EU Member States and other countries more broadly to put in place effective prevention initiatives for persons who fear that they might offend against children, the European Commission’s Joint Research Centre has recently published the report ‘Help Seeker and Perpetrator Prevention Initiatives – Child Sexual Abuse and Exploitation’ 6 . This work provides the basis for steps towards developing an EU IT platform compiling child sexual abuse prevention initiatives, which will support EU Member States and other stakeholders in designing and in implementing tailor-made prevention policies according to their respective cultural and societal environments and needs.
•Detailed explanation of the specific provisions of the proposal
Throughout the Directive, the terminology used has been brought into line with recognised international standards such as the Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse adopted by the Interagency Working Group in Luxembourg on 28 January 2016 7 .
The following changes are being proposed:
Article 2: Accessing child sexual abuse material is often the first step towards hands-on abuse, regardless of whether it depicts real or realistic abuse and exploitation 8 . The development of augmented, extended and virtual reality settings and the possibility of misusing artificial intelligence to create “deepfakes”, i.e. synthetically created lifelike child sexual abuse material, has already stretched the definition of “image”, as such materials may make use of avatars including sensory feedback, e.g. through devices providing a perception of touch. The amendments to Article 2(3)(d) are meant to ensure that the definition of child sexual abuse material covers these technological developments in a sufficiently technology-neutral and hence future-proof way. In addition, there are manuals in circulation that provide advice on how to find, groom and abuse children; on how to avoid being identified, investigated and prosecuted; and on how best to hide materials. By lowering barriers and providing the necessary know-how, these manuals, known as “paedophile handbooks”, contribute to inciting offenders and support the commission of sexual abuse, and should therefore also be criminalised. Article 2 also includes a definition of peers, as persons, including both children and adults, who are close in age and degree of psychological and physical development or maturity.
Article 3: the amendments to Article 3 are intended to ensure consistency between the level of penalties provided for by the proposal and that provided for in relation to analogous offences, in the Directive (EU) …/… [proposed Directive on combating violence against women and domestic violence]. This includes an amendment to cover also the act of causing a child who has not reached the age of sexual consent to engage in sexual activities with another person in situations outside the context of coercing, forcing or threatening.
Article 4: The level of penalties for engaging in sexual activities with a child where recourse is made to child prostitution (Article 4(7)) is increased to 8 years when relating to a child below the age of sexual consent, and 4 years where the child is above the age of sexual consent. This increase is necessary to ensure consistency with recent acquis, including the Directive (EU) …/… [proposed Directive on combating violence against women and domestic violence].
Article 5: There is a public interest in supporting the work of organisations acting in the public interest against child sexual abuse, such as the INHOPE hotlines, that receive reports from the public on child sexual abuse materials and facilitate removal of such materials and the investigation of the offence. Where these organisations, acting in the public interest, review and analyse or otherwise process material constituting child sexual abuse images or videos for the purposes of removal or investigation, such processing should not be criminalised. Therefore, it is necessary to limit the definition of the corresponding offences accordingly, by clarifying that such processing is not considered to be “without right” when these organisations have been authorised by competent authorities of the Member State in which they are established.
Article 6: the changes to Article 6 ensure that all forms of online solicitation, including solicitation aimed at committing child sexual abuse and exploitation offences in an online context, are criminalised in all Member States.
Article 7: the new Article 7 is intended to ensure that all Member States criminalise, and provide for an effective investigation and prosecution of the offence of live-streaming child sexual abuse. This has seen a considerable increase in recent years and has raised specific investigative challenges, linked to the impermanence of the streamed abuse and the consequent lack of evidence available to investigative bodies.
Article 8: the new Article 8, by criminalising the conduct of running an online infrastructure for the purpose of enabling or encouraging child sexual abuse or exploitation, is intended to tackle the role played by the dark web in the creation of communities of offenders or potential offenders and in the dissemination of child sexual abuse material.
Article 10: the amendments to Article 10 are intended to clarify current ambiguities in the Directive’s text, including by ensuring that the exemption from criminalisation for consensual sexual activities is correctly understood as applying only to material produced and possessed between children or between peers, rather than between a child over the age of sexual consent and an adult of any age.
Article 12: the amendments to Article 12 are intended to tackle the risks that offenders might regain access to children through employment or voluntary activities. They put in place a requirement for employers recruiting for professional and voluntary activities involving close contact with children and recruiting for organisations acting in the public interest against child sexual abuse, to request the criminal records of persons to be recruited. It also obliges Member States to provide criminal records as complete as possible in response to such requests, using the European Criminal Record Information System whenever relevant and any other appropriate source of information.
Article 14: this article governing sanctions that can be imposed on legal persons was modified to align it with recent acquis, by expanding the list of examples of possible sanctions to include an explicit reference to exclusion from access to public funding and by including a harmonised methodology for the calculation of minimum fines. Specifically, Member States should take the necessary measures to ensure that legal persons that benefit from the commission by others of offences in violation of Union restrictive measures are punishable by fines, the maximum limit of which should be set in correlation with the severity of the offence as defined by its minimum level of maximum penalty, to be no less than 1, respectively 5, per cent of the total worldwide turnover of the legal person in the business year preceding the fining decision. The liability of legal persons does not exclude the possibility of criminal proceedings against natural persons who are the perpetrators of criminal offences specified in this Directive.
Article 15: the amendments introduced complete and clarify the situations in which Member States are entitled not to prosecute or impose penalties on child victims of sexual abuse and sexual exploitation for their involvement in criminal activities, which they have been compelled to commit, covering also the distribution, offering, supplying or making available child sexual abuse material. The corresponding recital has been amended to clarify that the term “compelled” should also be understood as also covering luring, without force or coercion.
Article 16: the amendments to Article 16(2) are meant to ensure that statutes of limitations cannot start running before the victim has reached the age of majority and to set minimum statutes of limitations to effectively allow the victim to seek justice. The amendments impose the following minimum standards in relation to the length of statutes of limitations:
–For offences punishable under this Directive with a maximum penalty of at least 3 years, the limitation period is to be of at least 20 years. Starting from the age of majority, this means that the statute of limitations does not expire until the victim is at least 38 years old.
–For offences punishable under this Directive with a maximum penalty of at least 5 years, the limitation period is to be of at least 25 years. Starting from the age of majority, this means that the statute of limitations does not expire until the victim is at least 43 years old.
–For offences punishable under this Directive with a maximum penalty of at least 8 years the limitation period is to be of at least 30 years. Starting from the age of majority, this means that the statute of limitations does not expire until the victim is at least 48 years old.
The rationale behind the proposed approach to statutes of limitations is as follows:
–Research has shown that victims of child sexual abuse and exploitation are often unable to report the crime for several decades after the abuse took place. The need to overcome the shame, guilt and self-blame, which can be related, among others, to the social and cultural stigma that still surround sexual abuse, the secrecy in which the abuse takes place, threatening or blaming conduct by the perpetrator, and/or trauma, results in most victims being unable to speak about, let alone report, the crime to an authority for decades 9 .
–A current study shows that, on average, it takes between 17.2 and 21.4 years before survivors of child sexual abuse tell someone about their experiences. Around 60-70% of survivors do not disclose anything until they are adults, and 27.8% of survivors do not tell anyone 10 . Age and gender are strong predictors for delaying disclosure or withholding disclosure, with trends showing fewer disclosures by younger children and boys 11 .
–Currently, the statutes of limitations differ widely among Member States. Some of them have abolished criminal statutes of limitations entirely for all or most of the offences covered by the Directive. Some others have very short statutes of limitations, which expire before the victim reaches the age of 40 for all or most of the offences covered by the Directive. Yet another group of Member States maintains statutes of limitations that expire after the victim has reached the age of 40 for all or most of the offences covered by the Directive.
–These differences among Member States lead to unequal access to justice for victims throughout the EU, in relation to the possibility of seeing the relevant offences prosecuted, and of obtaining compensation. In addition, perpetrators might take advantage of the system and escape prosecution by relocating to somewhere where statutes of limitations are shorter and have, therefore, expired. This situation creates the risk that potential offenders are able to escape prosecution and continue posing a danger to children for several decades.
–In light of the above, it seems clear that effective investigation and prosecution of child sexual abuse and exploitation crimes, and appropriate victim assistance and support, can only be provided if statutes of limitations allow victims to report the crime, without being barred from seeing an investigation launched, until sufficiently late in life.
The amendments to Articles 16 i to (5) are intended to address investigative challenges, in particular, linked to the use of online technologies, that have emerged in the context of the Directive’s evaluation and related stakeholder consultations. They require Member States to ensure that persons, units or services investigating and prosecuting the offences referred to in Articles 3 to 9 have sufficient staff, expertise and effective investigative tools, including the possibility to conduct undercover investigations on the dark web.
Article 17: underreporting of child sexual abuse still constitutes a major challenge in the efforts to stop child sexual abuse and prevent further sexual abuse from taking place, inter alia because educators and health care providers, as well as other professionals working in close contact with children, may hesitate to allege that anyone – potentially a colleague or a peer – has committed child sexual abuse. Article 17 i was amended to institute a reporting obligation, in order to provide legal certainty to such professionals, while Article 17 i ensures that professionals in the health care sector working with offenders or people who fear that they might offend are excluded from such reporting obligation.
Article 18: this article builds on the rights of victims under Articles 5 and 5a of Directive (EU) 2012/29/EU establishing minimum standards on the rights, support and protection of victims (Victims Rights Directive) [as amended by the proposed Directive amending Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims] when it comes to reporting of offences, to ensure that easily accessible and child-friendly reporting channels are available.
Article 21: this article expands the availability of assistance and support to victims in line with the Victims Rights Directive [as amended by the proposed Directive amending Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims] to ensure that children receive the necessary and age-appropriate care. In order to support the development and expansion of best practices across Member States, the EU Centre, once established, would support Member States’ efforts by gathering information on available measures and programmes and making such information widely available.
Article 22: this article is amended to ensure that medical examinations of a child victim for the purposes of the criminal proceeding, which can retraumatise a child, are limited to the strictly necessary and performed by appropriately trained professionals.
Article 23: this new article strengthens the position of victims and survivors of child sexual abuse by reinforcing their right to claim compensation for any damage suffered in connection with child sexual abuse and exploitation offences, including damages caused by the online dissemination of material concerning the abuse. It strengthens the EU minimum standards in relation to both the timeframe to request compensation and the elements to be taken into account when determining the compensation amount. It also broadens, in relation to the EU minimum standards under the Victims’ Rights Directive, the number of people and entities that must be considered responsible for granting such compensation, including legal persons and, where appropriate, from national compensation schemes established for the benefits of victims of crime.
Article 24: this new article addresses the challenges linked to the lack of coordination of national efforts to prevent and fight child sexual abuse and exploitation, by requiring Member States to establish national authorities in charge of such coordination, and of data collection in each Member State.
Article 25: this new article obliges Member States to put in place the necessary mechanisms to ensure a multi-agency and multistakeholder cooperation and coordination at national level mong all the relevant parties involved in the development and implementation of measures to prevent and combat child sexual abuse, both online and offline.
Article 26: the title of this article and the recitals accompanying this article have been updated to use the terminology recommended in the Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse 12 in relation to the previously used term “child sex tourism”.
Article 27: the amendments made in the first paragraph clarify that the prevention programmes for persons who fear that they might offend should be dedicated to that group of persons and that Member States should provide access to them. A new paragraph 2 aims to ensure the accessibility of these programmes and in particular that is in line with national standards concerning healthcare.
Article 28: the amendments made aim to further clarify the types of prevention programmes that could be considered to reduce the likelihood that a child becomes a victim (paragraph 1) and that a person offends (paragraph 2). Additional examples have been added to the corresponding recitals. The article requires Member States to promote regular training not only for front-line police officers likely to come into contact with child victims of sexual abuse or exploitation, but also for judges and other relevant professionals, to ensure child-friendly justice. It obliges Member States to work on prevention of both online and offline child sexual abuse and requires them to adopt specific prevention programmes dedicated to children in community settings, given their particular vulnerability. Finally, the amendments attribute a crucial coordination and knowledge hub role in this respect to the future EU Centre.
Article 31: this new article obliges Member States to collect periodically statistics on the offences included in the Directive following a common methodology developed in cooperation with the EU Centre, share those statistics with the EU Centre and the Commission and make them publicly available. The EU Centre in turn should compile all statistics received and make the compilation publicly available.
Article 32: this new article on reporting replaces the previous one and sets out reporting requirements for the Commission every 5 years to the European Parliament and to the Council of the EU on the application of the Directive.
Article 33: the amendments in this article clarify the provisions that need to be transposed by Member States, i.e. those that have been amended by comparison with Directive 2011/93.
Article 34: this new article repeals Directive 2011/93/EU and clarifies the transposition obligations of the proposed Directive versus Directive 2011/93/EU.
Article 35: this new article sets out the dates of entry into force of the Directive. It also sets out the date of entry into application for the majority of the Directive, and the date of entry into application of the provisions that refer to the EU Centre, which depend on the date of establishment of the EU Centre currently being discussed in the inter-institutional negotiations of the proposal for a Regulation laying down rules to prevent and combat child sexual abuse.
Article 36: the amendment in this article is limited to leave open the place and date of adoption, to be specified at a later stage.
⇩ new